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U.S. to Seek Reversal of Abortion Decision : Decides to Ask High Court to Overturn Ruling Making Act a Constitutionally Protected Right

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Times Staff Writer

The Reagan Administration, in an unusual move certain to fuel the controversy over legalized abortion, has decided to ask the Supreme Court to overturn its landmark 1973 decision that made abortion a constitutionally protected right, The Times learned Friday.

Acting Solicitor General Charles Fried, in a brief to be filed Monday, will cite lower-court rulings from Pennsylvania and Illinois in arguing that the decision in the case, Roe vs. Wade, was so broad that it has blocked even modest attempts by states to control abortions, Administration sources said.

Because of that overly broad effect, the argument goes, the landmark decision should be overturned completely.

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Such a Request Rare

Not since 1954, when the government successfully urged the high court to overrule its 1896 decision upholding “separate but equal” schools, has the Justice Department asked the justices to reverse themselves on a basic constitutional decision, officials said.

Only two years ago, the court in a 6-3 split reaffirmed the constitutional right to obtain an abortion while striking down several local legislative restrictions on access to abortions. The membership of the court has not changed since then.

Fried, a highly regarded constitutional expert on leave from Harvard Law School, would not acknowledge on Friday that the Justice Department planned to file the brief in the two cases under review. But other sources agreed to discuss the Administration’s position.

In the Pennsylvania case under review (Thornburgh vs. American College of Obstetricians and Gynecologists, 84-495), a federal appeals court struck down most of that state’s 1982 abortion-control law on grounds that it infringed on a woman’s right to have an abortion.

Among other things, the law required that women be informed of the potentially detrimental physical and psychological effects of abortion and be provided with information about the availability of public assistance benefits for prenatal care and childbirth. Doctors performing abortions were obligated to file detailed reports with the state, and the law required that a second physician be present to help save an aborted but viable fetus.

The Supreme Court’s agreement last April to review the Pennsylvania ruling raised speculation that at least one justice might be considering a shift in his position. The case presents issues similar to those the justices considered in their decision two years ago reaffirming the right to abortion.

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Votes from at least four of the court’s nine members are required to grant review, and in 1983 only three members--Justices Sandra Day O’Connor, Byron R. White and William H. Rehnquist--dissented when the court struck down a series of state and local restrictions that made abortions more difficult to obtain.

Although Chief Justice Warren E. Burger voted with the 7-2 majority that established the constitutional right to abortion 12 years ago, there has been speculation that his commitment to that decision has been wavering in recent years.

Illinois Law

In the Illinois case (Diamond vs. Charles, 84-1379), which the court agreed in May to review, the state and an anti-abortion group, Americans United for Life, appealed a federal court ruling that struck down key elements of the Illinois abortion law of 1975.

The law required physicians performing abortions to use methods that would be likely to save a viable fetus. It also required doctors to tell patients that some methods of birth control are “abortifacients” that, unlike contraceptives, cause fetal death after conception. Such methods, like the IUD, prevent implantation of a fertilized egg in the womb.

Fried, in his brief, is expected to argue that the court in Roe vs. Wade did not intend to rule out modest attempts to control abortions that do not actually erode a woman’s constitutional right to privacy--a right upheld in the 1973 decision.

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